Maltby v. Thiel
| Decision Date | 27 April 1937 |
| Citation | 272 N.W. 848,224 Wis. 648 |
| Court | Wisconsin Supreme Court |
| Parties | MALTBY et al. v. THIEL et al. |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Calumet County; Fred Beglinger, Judge.
Reversed.
Action by Harriet Maltby and another against Blase Thiel and his insurer and T. R. Mafit and his insurer, to recover for injuries sustained in an automobile collision, commenced February 1, 1936. From a judgment entered August 15, 1936, in favor of the plaintiffs and against all of the defendants, and for contribution between them, the defendant Thiel and his insurer appeal.
Harriet Maltby, wife of Charles Maltby, was riding as a guest in a car driven by defendant Thiel, which collided with a car driven by defendant Mafit. Both sued both defendants and their insurers for damages for their respective injuries sustained in and resulting from the collision charging them with negligence that caused the injuries. The defendant Mafit and his insurer cross-complained and demanded damages against and contribution by Thiel and his insurer. Thiel cross-complained and demanded damages and contribution by Mafit and his insurer. The jury by special verdict found Thiel guilty of negligence causing the collision as to (a) proper lookout; (b) control; and (c) being on the wrong side of the road. The court changed findings (b) and (c). The jury found Mafit guilty of negligence causing the collision as to control, lookout, and speed. They found Harriet Maltby not negligent with respect to lookout, warning Thiel and protesting, but found that she had knowledge (d) of the hazard of danger from collision and (e) was willing to proceed in face of the danger. Answers (d) and (e) were changed by the court. The jury found Thiel's negligence was 80 per cent. as compared to Mafit's 20 per cent. The court changed these findings to Thiel 40 per cent. and Mafit 60 per cent. Judgment was entered in favor of both plaintiffs against both defendants and their insurers and for contribution by the defendants. Mafit's insurer paid one-half of the judgment. Defendant Thiel and his insurer appeal from the judgment. Mafit's cross-complaint was dismissed. Judgment was rendered in favor of Thiel on his cross-complaint against Mafit and his insurer. Mafit and his insurer have not appealed.
The evidence is without substantial dispute that Thiel, going north, came to the top of a hill. There was a short level space in the road at the top. The road was icy and sloped slightly to Thiel's left. The wheels of Thiel's car were slipping as he went up the hill, and he was going about five miles per hour at the top. He took his foot off the gas as he reached the top of the hill and the rear of his car began skidding to the left. He applied the brake, without releasing the clutch, and his motor stalled. The car did not stop but slid sidewise down the hill. The rear kept skidding to the left and the car backed into a snowbank on Thiel's left side of the road, about two hundred feet from the top of the hill, facing nearly southeast. The car stopped a short distance north of a turn in the road to Thiel's right. Thiel saw the glow of Mafit's lights as they showed past the curve, and knew a car was approaching. Mafit was about three hundred feet away when Thiel's car stopped. There was a snowbank on the east side of the road that obstructed Mafit's view of Thiel's car. Mafit did not see Thiel's car until he was one hundred fifty or one hundred seventy-five feet from it. He was then going about thirty-five miles per hour and applied his brakes immediately. He ran into Thiel's car, striking it near the left front.Rouiller, Dougherty, Arnold & Kivett, of Milwaukee, for appellants.
Fox & Fox, of Chilton, for defendants.
Helmuth F. Arps, of Chilton, for respondent.
The defendants Mafit and his insurer have not appealed, and have raised no issue as to the plaintiff's judgment against them. The plaintiffs are content with their judgment against Mafit and his insurer, and are not contesting the appellants' claims. Thus the only issues are between the defendants Thiel and Mafit and their respective insurers.These issues are whether on the preceding statement of facts the trial judge was justified (1) in changing the finding of the jury that Thiel was negligent as to control of his car (b) and as to being on the wrong side of the road (c); (2) whether, on those facts, the trial judge was justified in changing the finding of the jury as to Mrs. Maltby's assumption of risk; and (3) whether on...
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Poole v. State Farm Mut. Auto. Ins. Co.
...to sustain a finding that negligent conduct precipitated the skidding. Wobosel v. Lee, 1932, 209 Wis. 51, 243 N.W. 425; Maltby v. Thiel, 1937, 224 Wis. 648, 272 N.W. 848. Jury verdicts that defendant driver was negligent have been sustained where there was evidence that negligent conduct pr......
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...If there is no credible evidence to sustain a jury's finding or answer the trial judge may and he should change it. Maltby v. Thiel, 1937, 224 Wis. 648, 272 N.W. 848. In La Motte v. Retail Hardware Mut. Fire Ins. Co., 1930, 203 Wis. 41, 233 N.W. 566, this court sustained the trial court for......
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...finding. They cite Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A.L.R. 665; Wobosel v. Lee, 209 Wis. 51, 243 N.W. 425; Maltby v. Thiel, 224 Wis. 648, 272 N.W. 848 and Churchill v. Brock, 264 Wis. 23, 58 N.W.2d 290, as authority for their contention. Out of these cases must be read the ru......